The Trial Process

1. The Trial Process

2. What is a trial? • Search for the truth? • To bring the competing sides to a peaceful conclusion and do justice? • Society's last ditch effort against the violent chaos that would result if individuals tried to settle disputes themselves? Regardless of which definition of purpose is used, the American justice system is set up as an adversarial system.

3. A trial means winning! • Both sides are fighting to win. • Winning means convincing the jury or a judge to believe one side's evidence rather than the other side's.

4. Criminal vs. Civil TrialsA World Apart? • Although there are vast differences between criminal and civil trials, there is very little difference between the rules of evidence applicable in a criminal case and those in a civil matter. • Perhaps the most marked difference is the amount of proof necessary. • In a criminal case, the prosecution must present enough evidence to convince the jury of the guilt of the defendant beyond a reasonable doubt.

5. Burdens of Proof:Civil vs. Criminal • In a criminal case, the prosecution must present enough evidence to convince the jury of the guilt of the defendant beyond a reasonable doubt. • In a civil trial, only a preponderance of the evidence must be presented on the part of one side or the other to receive a favorable judgment.

6. What are the actual differences? • Proof beyond a reasonable doubt is not proof beyond all doubt, but it is the highest level, or quantity, of proof that American law demands in any case. • Proof beyond a reasonable doubt is far more than 50 percent. • On the other hand, proof by a preponderance of the evidence—the quantity required to win in a civil trial—is 50 percent plus a feather.

7. Officer’s Duty to Satisfy the Criminal Burden of Proof • The law enforcement officer must help to gather and prepare the evidence for trial to ensure that the prosecutor can present enough evidence to fill in the gap between the police officer's standard of probable cause and the prosecutor’s standard of proof beyond a reasonable doubt.

8. Jury Trial vs. Bench Trial • A criminal trial may be conducted in one of two ways. It may be what is known as a "jury trial" or it may be a "court trial," which is a trial by a judge without a jury (also known as a "bench trial"). • A trial before a judge alone is conducted in much the same manner as a trial before a jury. • The structure of the trial is the same and the same rules of evidence apply.

9. A Constitutional Guarantee! • The Sixth Amendment to the Constitution of the United States, as well as provisions in the constitutions of the fifty states, guarantees to a defendant in a criminal trial the right to be tried by an impartial jury. • For many years those provisions were interpreted to mean that the defendant must have a jury trial.

10. The Jury: A Historical Perspective • The common law rule and the rule in most states in the United States calls for a jury in a criminal case consisting of 12 persons. • In the early history of Europe, many of the inquisitory councils, also referred to as "juries," often consisted of a number ranging from four to 66 persons. By the thirteenth century, 12 was the usual number of an inquisitory council.

11. The Jury: A Historical Perspective: Part II • By the fourteenth century, the requirement of 12 persons had become more or less fixed. • Thereafter this number seemed to develop a somewhat superstitious reverence.

12. Juries in the New World • When the colonists came to America, juries in England were composed of 12 persons. It was only natural that juries in this country should also consist of 12 persons.

13. Juries and the Bill of Rights • The Sixth Amendment to the United States Constitution prescribes no set number for a jury. All the Amendment states is: "In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury."

14. Qualifications of Jurors • A person is qualified to act as a juror if the person is— • (1) a citizen of the United States; • (2) a resident of the state; • (3) at least 18 years of age; • (4) of sound mind; • (5) in possession of the person's natural faculties; and • (6) able to read or speak the English language.

15. The Judge: In Charge of the Courtroom • The judge's principal responsibility is to see that the defendant in a criminal case gets a fair trial.

16. Duties of the Judge • Deciding what law applies to the case. • Interpreting the law of the case for the jury. • Deciding what evidence is admissible and what is not. • Ruling on objections made by the attorneys. • Determining the qualification of witnesses. • Protecting witnesses from overzealous cross-examinations. • Ensuring that the trial proceeds efficiently and effectively. • In most states in most instances, imposing sentence upon the defendant in a criminal case.

17. Contempt of Court: “Holding the Keys to Your Jail Cell” • Contempt is the power of the court to punish persons for failure to obey court orders or to coerce them into obeying court orders. • A person held in civil contempt is said to "hold the keys to the jail cell in his or her pocket." If the person complies with the court order, he or she will be released from custody.

18. The ProsecutingAttorney’s Responsibility • Prosecutors must decide which criminal charges should be prosecuted and which should be dismissed in the interests of justice. • The prosecutor has broad power to decide whether or not to pursue any given case. The public has a right to demand that the prosecutor use that power wisely and impartially.

19. Some SpecificProsecutorial Considerations • In deciding what evidence to use, the prosecutor will consider . . . • past experience with the particular charge involved; • knowledge of the personality of the judge who will be hearing the case; • the potential dramatics of the situation as the trial progresses; • an obligation to disclose, to the defense attorney, any evidence that could be used to aid the defense.

20. The Prosecutor’sBurden of Proof • The United States Supreme Court has held that the Constitution makes it the responsibility of the prosecutor to prove every element of a charged offense beyond a "reasonable doubt." • The Court has also held that the "Constitution does not require any particular form of words be used" in instructing the jury on the definition of reasonable doubt.

21. What Is Reasonable Doubt? • In practical terms, the Court has approved a definition that indicates that reasonable doubt is a doubt based upon reason; that which would make a reasonable person hesitate to act in connection with important affairs of life.

22. A Case Law Definitionof Reasonable Doubt • It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. • Victor v. Nebraska, 511 U.S. 1 (1994)

23. The Role of the Defense Attorney • Defense counsel's primary function is to make certain that all the rights of the accused are properly protected.

24. Specific Duties of theDefense Counsel • Conduct pre-trial investigation and discovery and otherwise prepare for trial. • Advise the accused concerning statements that he or she may or may not make. • Cross-examine the prosecution witnesses and present any defense necessary under the circumstances. • Assure that the defendant receives a fair trial. • Zealously represent the accused.

25. Step-by-Step: The Trial Process • Opening Statement • Case-in-Chief • Direct Examination • Cross Examination • Judgment for Motion of Acquittal • Closing Statements • Prosecution’s Rebuttal Statement

26. The Opening Statement • After the charge has been read to the jury, the trial proper begins with the prosecution's opening statement. • The opening statement is a summary of how the prosecution expects its evidence to prove the defendant guilty beyond a reasonable doubt. • An opening statement is often given in the form of a story, but it is a story in which the attorney promises to support the narrative with positive proof.

27. The Case-in-Chief • The case-in-chief is that portion of the case consisting of the main evidence of either the prosecution or defense. The prosecution has the burden of going forward with its case-in-chief, presenting witnesses and exhibits. • The prosecution proceeds by direct examination with these witnesses and the witnesses are subject to cross-examination by the defense. • After the prosecution has concluded its case, the defense will present its case-in-chief, with the prosecution cross-examining defense witnesses.

28. The Defense’s Opening Statement • After the prosecution rests, the defense will give an opening statement, if the attorney did not do so after the prosecution's opening statement. • Then the defense will present its side of the case in an effort to raise a reasonable doubt.

29. What Is the Defense’s Burden? • Because of the presumption of innocence, the defendant does not have to present any evidence at all, for the burden of proving the defendant guilty rests entirely on the shoulders of the prosecution, without any help from the accused.

30. Defense Strategies and Concerns • In many cases, the defendant will present some evidence—either alibi, character, justification, or excuse evidence. • The defendant may testify and deny guilt or support some affirmative defense, such as alibi, self-defense, or insanity. • An affirmative defense is a reason under the law that allows a defendant to claim to be exonerated, one that the defendant must affirmatively claim and prove.

31. Prosecution’s Rebuttal • Upon completion of the presentation of all the evidence on behalf of the defendant, the prosecution has the right to call additional witnesses or to present new evidence only to overcome new matters brought out during the defendant's case.

32. Defense’s Prima Facie Case • The prosecution must establish: • The jurisdiction of the court. • The corpus delicti of the specific offense charged • The facts that could lead a reasonable juror to believe that the accused is the responsible person. After the conclusion of the prosecution's case-in-chief, the prosecution rests its case.

33. Motion for Judgment of Acquittal • The defense attorney, at this time, will ask the trial judge for a judgment of acquittal—a judicial decision on whether the prosecution has satisfied its burden during the presentation of its case-in-chief. If the motion for judgment of acquittal is granted, the case is over.

34. Witness Requirements • Before the witness takes the seat to testify, an oath is administered to the witness by the judge, bailiff, or some other officer of the court. • The oath consists of words to this effect: • "I do solemnly swear (or affirm) to tell the truth and nothing but the truth, so help me God" (the reference to God being deleted in the case of a person wishing to affirm, rather than swear).

35. To Qualify as a Witness • In order to qualify as a witness, a person must— • be able to understand what it means to tell the truth so that they can take the oath (or affirm) that they will do so; • possess personal knowledge of some perceived relevant facts about the case; • be able to remember those facts; and • be able to communicate them. • All other matters relating to being a witness, under modern law, go to the weight of the witness's testimony, not the witness's qualification.

36. Direct Examination • The questioning of a witness by the side who calls the witness is known as direct examination. • Direct examination usually begins by asking the witness his or her name, address, and occupation. Even though this information may be well known to all in the courtroom, it is necessary for the court record of the case. • After these preliminary background questions are completed, the general questioning of the witness concerning the specific facts of the case begins.

37. The Scope of Direct Examination • During the direct examination, whether it be by the prosecution or the defense, the attorney must form the question in such a manner that the desired answer is not indicated. • An example of a leading question is: "The defendant had a gun in his hand, didn't he?"

38. Cross-Examination • After the direct examination is completed, the opposing side has the right to cross-examine the witness. • The right of cross-examination is considered essential for the discovery of truth during a trial.

39. Dicta on Cross Examination • As one highly regarded evidence scholar has put it: Cross examination "is the greatest legal engine ever invented for the discovery of the truth." • 5 J. Wigmore, Evidence § 1367 (3d ed. 1940), as cited in California v. Green, 399 U.S. 149, 157 (1970).

40. The Attorney’s Taskon Cross-Examination • First, the cross-examiner may hope to shake the witness's story and thereby cause the jury to give the testimony less weight. • Second, the cross-examiner may try to show that the witness is prejudiced and consequently may have testified incorrectly or untruthfully. • Third, the cross-examiner may try to show that the witness has made prior, inconsistent statements and thus should not be believed by the jury. In any event, cross-examination is frequently a trying experience for the witness involved.

41. Redirect Examination • Upon conclusion of cross-examination by the opposing attorney, the direct examiner may further question the witness in order to rebut or clarify matters raised during cross-examination. • This further questioning is known as redirect examination and is only for the limited purpose of rebuttal or clarification of information brought out during cross-examination. • New matters are not allowed to be brought out for the first time on redirect examination.

42. Re-Cross- andSubsequent Examinations • After a redirect examination has been conducted, the judge may give permission to the opposing attorney to ask questions limited to further clarification of statements made by the witness during the redirect examination. • This questioning is referred to as re-cross-examination. • Likewise, after re-cross examination, and thereafter, in rotation, the opposing attorneys may, at the court's discretion, be permitted further questioning. • None of these further steps is necessarily required and any questioning past redirect examination is purely within the discretion of the trial judge.

43. Objections • During the questioning of any witness, including the direct examination of the prosecution's witnesses, the opposing attorney will interject evidentiary objections. • These objections may be based on any one of a number of grounds, according to the law. Some common grounds are: • leading, irrelevant, hearsay, calls for opinion, or speculation. Objections may be well-founded or they may be made principally for effect.

44. Rulings on Objections • The judge will either sustain the objection or overrule it. If the objection is sustained, or upheld, the witness must not answer the question. If the judge overrules, or denies, the objection, the witness may answer the question asked.

45. Interesting Facts About the Record • Historically, the usual method of recording was through a court reporter, a person specially trained and equipped to take down verbatim the official record of the proceedings in a court. • Today, of course, recording may be done mechanically, utilizing sophisticated audio and video equipment. • Regardless of the way in which the proceedings are preserved, the fact that a record is made affects the manner in which people act in the courtroom..

46. Closing Arguments • After both sides have presented their cases, the prosecutor and defense attorney may make closing, or final, arguments to the jury. • These arguments, unlike opening statements (where the attorneys present a roadmap of the case), are the opportunity for the lawyers to summarize the case in an overt attempt to persuade the jury to their view of the evidence. • Attorneys are allowed to appeal to the jury based on any inferences that may rationally be drawn from the evidence.

47. Trials of Record • All felony trials and most other criminal trials today are trials of record. This means that the proceedings are recorded verbatim to preserve a record for appeal, in order to preserve the rights of the accused in the event of a conviction.

48. Recording Specifics & Concerns • Bearing in mind the need to make the record, all communication in court must be audible. • Gestures, ambiguous sounds, or inaudible responses cannot be recorded effectively by a court reporter and may be misleading even if mechanically recorded. • Only one person may speak at a time, and people cannot speak so rapidly as to make it difficult to be understood. • In short, the participants in a trial must remain consciously aware that what they are saying and doing must satisfy the requirements for making the record.

49. The Judge’s Instructions or Charges to the Jury • When the attorneys for both sides have finished their closing arguments, the judge will read the instructions to the jury. Sometimes, the judge instructs the jury before closing arguments. In rarer instances, the judge may even instruct the jury at the beginning of the trial.

50. What Are Instructions or Charges? • Jury instructions consist of an interpretation of the substantive and procedural law that applies to the case. • The purpose of these instructions is to assist and guide the jury in its review of the evidence in order that it may arrive at a verdict.